SB326: Bill Text

2011 Senate BILL 326

December 8, 2011 - Introduced by Senator Kedzie, cosponsored by Representative Mursau. Referred to Committee on Natural Resources and Environment.

SB326,2,13 An Act to repeal 30.12 (1k) (b) 1., 30.12 (1k) (b) 2., 30.12 (1k) (b) 3., 30.12 (1k) (c), 30.12 (1k) (d), 30.12 (3) (br), 30.123 (6) (a), 30.123 (7) (b), 30.1235, 30.19 (3r) (b), 30.20 (1t) (b), 30.206 (1g) and 30.206 (1m); to renumber 30.123 (7) (a) and 30.19 (3r) (a); to renumber and amend 30.12 (1g) (f), 30.12 (1k) (b) (intro.), 30.12 (3) (a) 6., 30.20 (1t) (a) and 30.208 (2); to amend 30.01 (1am) (c), 30.025 (2), 30.10 (4) (a), 30.12 (1j) (c), 30.12 (1k) (cm) (intro.), 30.12 (1k) (cm) 1., 30.12 (1k) (cm) 2., 30.12 (1k) (e) 2., 30.121 (3), 30.121 (3g), 30.121 (3r), 30.18 (4) (a), 30.206 (1) (a), 30.2065 (3) (a) 1., 30.208 (3) (a), 30.208 (3) (b), 30.208 (3) (c), 30.208 (3) (e), 30.208 (4) (a), 30.208 (5) (a) (intro.), 30.208 (5) (a) 1., 30.208 (5) (b) (intro.), 30.208 (5) (b) 4., 30.208 (5) (b) 5., 30.209 (2) (a), 30.209 (2) (b), 30.209 (2) (c), 30.209 (2) (d) (intro.), 30.2095 (1) (b), 84.01 (23), 227.01 (13) (rt), 281.344 (9) (b) 1. a., 281.346 (9) (b) 1. a., 283.39 (1) (a), 283.53 (1), 285.61 (5) (c), 285.62 (3) (c), 285.76 (2) (a), 289.25 (3), 289.31 (4) (a), 289.41 (1m) (g) 1., 291.87 (3), 291.87 (6) (a) and 292.31 (3) (f); to repeal and recreate 299.05; and to create 30.102, 30.106, 30.11 (4m), 30.12 (1h), 30.12 (3) (a) 6. c., 30.12 (3) (a) 14., 30.12 (3) (d), 30.121 (1), 30.121 (3c), 30.123 (7) (d), 30.19 (1m) (f), 30.19 (1m) (g), 30.20 (1g) (b) 3., 30.20 (1t) (a) 2., 30.20 (1t) (a) 3., 30.206 (1) (am) and (ar), 30.206 (1) (b), 30.206 (1r), 30.206 (2b), 30.206 (2m), 30.208 (2) (d), 30.208 (3) (f), 30.208 (4m), 30.209 (2) (e), 31.12 (5), 281.41 (5), 285.63 (11), 299.06 and 299.17 of the statutes; relating to: the issuance of, and exemptions from, certain individual permits, contracts, and general permits for structures, deposits, and other activities in or near navigable waters; areas of significant scientific value that are areas of special natural resource interest; repair and maintenance of boathouses and fixed houseboats; information required to be published on the Department of Natural Resources Internet Web site; expedited procedures for certain plan approvals; deadlines for action on certain approval applications; and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, the Department of Natural Resources (DNR) regulates certain activities that occur in or near navigable waterways. DNR also administers environmental laws, including laws relating to air and water quality.

Regulation of activities in or near navigable waterways

In order for a person to conduct an activity in or near a navigable waterway, the person may be required to obtain one or more permits from DNR. Among the permits that DNR issues are permits to place structures or deposit material into navigable waters, and permits to remove material from the beds of navigable waters. Under current law, some activities are exempted from these permitting requirements, some activities require that the person be issued an individual permit for the activity, and some activities are authorized under general permits. Under current law, a person must seek authorization from DNR to proceed under a general permit. If DNR does not inform the person within a certain time frame that an individual permit is required, the person may conduct the activity pursuant to the general permit. DNR may also require that a person be issued an individual permit for an exempt activity or for an activity authorized under a general permit under certain circumstances.

Procedures in issuing individual permits

In issuing an individual permit, DNR reviews the application, determines whether it is complete, and notifies the applicant within 30 days after receiving the application whether the application is complete (30-day review period). If the application is incomplete, the applicant may supplement the application, but DNR may not demand items of information that are not specified in the notice as a condition for determining whether the application is complete, with limited exceptions. Current law imposes no time limits on this process for determining whether an application is complete other than the 30-day review period.

Once DNR determines the application is complete, current law imposes time limits on the notice and public hearing procedures that apply to the application. Within 15 days, DNR must provide notice to the public that the application is complete (application notice). If the applicant has requested a public hearing as part of the application, a notice of public hearing must be included in the application notice.

If the application notice does not contain a notice of public hearing, any person may request a public hearing, or DNR may decide on its own to hold a public hearing if DNR determines that there is a significant public interest in holding a hearing. The public hearing request must be submitted by the interested person, or DNR's decision to hold a public hearing must occur, within 30 days after DNR provides the application notice. Within 15 days after the public hearing request is submitted by an interested person or DNR makes its decision, DNR must give notice of the public hearing (separate notice of hearing). DNR must hold the hearing within 30 days after the notice of public hearing is issued either as part of the application notice or as an independent separate notice of hearing.

Also, DNR must provide a period to receive public comments. This period lasts for 30 days after the date on which DNR provides notice to the public that the application is complete or for ten days after the date that a public hearing ends, if one is held. Within 30 days after the public hearing is held or, if no public hearing is held, within 30 days of the 30-day comment period, DNR must render a decision either to issue or not to issue the individual permit or contract.

Under the bill, the time limits for giving application notice and notice of public hearing are not totally dependent on the date that the application is determined by DNR to be complete. If, upon reviewing the application, DNR determines that the application is complete and that no additional information is needed, DNR must notify the applicant of that fact within the 30-day review period. The date on which this notice is sent triggers the time limits for the public hearing process and for receiving public comments.

If DNR determines that the application is not complete, it may make only one request for additional information during the 30-day review period. There is no time limit on the applicant for providing the additional information but once it is submitted, DNR must notify the applicant within ten days as to whether the application is complete. Even if the application is not complete, the date on which this second notice is sent triggers the time limits for the public hearing process and for receiving public comments. Under the bill, the term used for such a date that triggers the time limits is "date of closure." DNR may ask for information to supplement the one-time request for information, but such a request may not affect the date of closure.

The bill shortens the 30-day time period for an interested party to request a public hearing or for DNR to make a decision on its own to hold a public hearing to 20 days.

Under the bill, if DNR fails to comply with 30-day and ten-day time limits relating to determining whether an application is complete, the date of closure shall be the last day of the 30-day or ten-day time period. If DNR fails to comply with the time limits relating to the public hearing and comment process, the application for the permit or contract shall be considered to have been approved.

Procedures in issuing general permits

Under current law, DNR is required to issue by rule statewide general permits authorizing placement of certain structures and deposits in navigable waters, the construction and maintenance of certain bridges, enlargement and connection of waterways, and removal of material from the beds of navigable waters. Current law allows DNR to issue general permits for certain other waterway activities.

Under this bill, DNR must reissue the four required statewide general permits for these waterway activities without using the rule-making process. The permits that were issued by rule will remain in effect until the new permits are issued. The bill also gives DNR authority to issue a general permit outside of the rule-making process for any other waterway activity for which an individual permit is issued.

The bill requires DNR to circulate a public notice of its intention to issue a general permit. This includes a procedure for circulating the notice, for receiving comments, and holding a public hearing. These procedures are in lieu of those that occur under the rule-making process. Under the procedures, DNR must provide up to 30 days after the date of the public notice for interested persons to submit written comments on the proposed general permit and must hold a public hearing if a request for a public hearing is received within 30 days of the circulation of the notice and DNR determines that there is significant public interest in holding a public hearing.

Piers and wharves

This bill modifies current law under which a waterfront property owner (riparian owner) may obtain an exemption to the general permit requirement for placing a pier or wharf on the bed of a navigable water. Under current law, in order for the permit exemption to apply, the pier or wharf may not be in an area of special natural resource interest, may not extend beyond a specified point, may not interfere with the riparian rights of other riparian owners, and may only have a specified number of boat slips. Current law also specifies that for the exemption to apply, the pier or wharf must comply with width limitations except that the pier may have an area as a loading platform that exceeds these limitations if the platform meets certain other size and configuration requirements.

The bill changes the size and configuration requirements for loading platforms on piers. Under the bill, a loading platform meets the exemption requirements, regardless of its configuration, as long as the surface area of the platform does not exceed 200 square feet. The bill also provides that a riparian owner may secure a specified number of personal watercraft to a pier without affecting the riparian owner's eligibility for the exemption.

Current law also grants an exemption to a riparian owner of a pier or wharf that was placed on the bed of a navigable water on or before February 6, 2004, if the pier or wharf meets certain size and configuration requirements and does not interfere with the riparian rights of other riparian owners and the riparian owner registers the pier or wharf with DNR no later than April 1, 2011 (grandfathering exemption).

This bill changes the grandfathering exemption so that any pier or wharf that was placed on the bed of a navigable water before the effective date of this bill is exempt from the permit requirement if the pier or wharf does not interfere with the riparian rights of other riparian owners. The bill eliminates the requirement that the pier or wharf be registered to be eligible for the grandfathering exemption.

Current law also prohibits DNR from taking any enforcement action against a riparian owner (enforcement exemption) for the placement of a pier, wharf, boat shelter, boat hoist, or boat lift (structure) on the bed of a navigable water before February 6, 2004, if DNR issued a permit or written authorization for the structure before that date and the structure is in compliance with the permit or authorization. This bill provides that the enforcement exemption applies regardless of the date on which DNR issued the permit or written authorization for the structure provided that the structure is in compliance with the permit or authorization.

Current law also requires DNR to issue statewide general permits that allow a riparian owner to conduct certain activities on the bed of a navigable water. This bill requires DNR to issue a statewide general permit to allow a riparian owner to place a pier or wharf on the bed of a navigable water that is in, or that would directly affect, an area of special natural resource interest if the pier or wharf meets the requirements for an exemption for the placement of a pier by a riparian owner. The bill also specifies that DNR may impose conditions relating to a pier or wharf that is placed under the authority of a general permit but may not prohibit placement if the pier or wharf meets the requirements of the general permit.

Placement of fill or structures within a bulkhead line

Generally, under current law, no person may, without a permit, deposit any material or place any structure on the bed of a navigable water beyond a lawfully established bulkhead line. A bulkhead line is a shoreline established by a municipality by ordinance. Current law does not require a riparian owner to obtain an approval from DNR to deposit material or place a structure on the bed of a navigable water if the deposit or placement is made within a bulkhead line. This bill provides that a riparian owner may place additional fill or a structure on the filled portion of a bed of a navigable water within a bulkhead line for any purpose without obtaining an approval from DNR if the filled portion was filled before the effective date of this bill. The bill also provides that if the bed of a navigable water within a bulkhead line was not filled before the effective date of the bill, a riparian owner may place fill or a structure on the bed of the navigable water without obtaining an approval from DNR if the riparian owner places the fill or structure for a public purpose.

Land grading activities and removal of materials

Current law prohibits, with certain exceptions, a person from engaging in construction, dredging, or enlargement activities with regard to certain artificial water bodies and navigable waterways without a permit. This bill creates an additional permit exemption. The bill allows a person to engage in land grading activity that is authorized under a stormwater discharge permit or under a permit issued by a county under a shoreland zoning ordinance.

Current law also requires, with certain exceptions, a person to have a permit in order to remove any material from the bed of a lake or navigable stream. This bill creates an additional exemption to the permit requirement for a removal of no more than a specified amount of material if the removal is necessary to allow access to place or remove a pier or wharf. The bill also requires the department to issue a general permit for the removal of a specified amount of material by a riparian owner for the purpose of placing or maintaining a boat lift and for the removal of not more than a specified amount of plant or animal deposits that impede navigation or access to a stream, inland lake, or outlaying water.

Bridges and culverts

Under current law, a city, village, town, or county is exempt from the individual and general permitting requirements for the construction or reconstruction of a highway bridge. This bill repeals this exemption. Instead, DNR must issue a general permit authorizing the construction, reconstruction, and maintenance of bridges and culverts that are part of a transportation project that is carried out under the direction and supervision of a city, village, town, or county

Areas of special natural resource interest

Under current law, certain exemptions for waterway activities do not apply in areas of special natural resource interest (ASNRIs). Current law defines, for purposes of exempting certain waterway activities from the individual and permitting requirements, an ASNRI to be a state natural area, a trout stream or other surface water that is identified by DNR as being an outstanding or exceptional resource water, or an area that has significant scientific value as identified by DNR. DNR has identified by rule various areas as having significant scientific value, including wild rice waters, waters that contain endangered or threatened species, and coastal wetlands. This bill incorporates into the statutes most of these areas designated by rule as having significant scientific value and prohibits DNR from identifying waters other than the ones specified in the statutes.

Other changes

Deadlines for action on certain approvals

This bill makes various changes to procedures that DNR is required to follow in issuing certain licenses, permits, registrations, and other approvals (approvals).

Under current law, DNR is required to promulgate rules to establish periods within which it intends to approve or disapprove applications for most environmental approvals. Current law provides that if DNR fails to make a determination on an application within the specified period, DNR must refund the fees paid by the applicant for the approval.

This bill specifies that for certain environmental approvals for which DNR establishes approval periods by rule, and for certain other environmental approvals for which a specific approval period is established in the bill, DNR must provide the applicant with written notice that the department has approved or disapproved the application, including the specific facts upon which any disapproval is based. The bill requires DNR to provide this notice before the expiration of the relevant approval period. The bill specifies that if DNR fails to provide this notice, DNR must refund the fees paid by the applicant and the applicant may seek administrative review of the application as if the application had been denied. The bill provides that for certain other approval applications, the failure to meet the deadline for approval or disapproval of an application constitutes approval of the application.

Expedited procedures

Under current law, a person to whom DNR issues a permit to construct a dam must submit specified documents and information to DNR including detailed plans and specifications for the proposed dam. Current law establishes a procedure under which DNR must examine this information and determine whether it is satisfactory or whether modifications are required before DNR approves the plans and specifications. Current law also establishes a procedure for the approval by DNR of plans for water and sewerage systems and sewage and refuse disposal plants (water and sewage plants). This bill requires DNR to establish an expedited procedure for the approval of plans for low hazard dams and for the approval of plans for water and sewage plants.

Internet publication

Current law requires DNR to publish a newspaper notice containing specified information relating to certain laws that it administers. The types of notices that DNR must publish include notices of scheduled hearings, of the opportunity to submit a written comment, and of the opportunity to request a public hearing and notices that provide certain other information to the public. This bill allows DNR, instead of publishing these notices in the newspaper, to publish these notices on its Internet Web site.

This bill also requires DNR to publish on its Internet Web site any determination that it makes that a waterway is navigable or not navigable, any determination that it makes that identifies the ordinary high-water mark of a navigable water, and, to the greatest extent possible, the current status of any application filed with DNR for a permit, license, or other approval relating to navigable waters or the environment.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB326, s. 1 Section 1. 30.01 (1am) (c) of the statutes is amended to read:

SB326,8,2 30.01 (1am) (c) An area that possesses significant scientific value, as identified by the department under s. 30.106.

SB326, s. 2 Section 2. 30.025 (2) of the statutes is amended to read:

SB326,8,13 30.025 (2) Hearing. Once the applicant meets the requirements of sub. (1s) (a), the department may schedule the matter for a public hearing. Notice of the hearing shall be given to the applicant and shall be published as a class 1 notice under ch. 985 or as a notice on the department's Internet Web site. The department may give such further notice as it deems proper, and shall give notice to persons requesting same. One copy of the application shall be available for public inspection at the office of the department, at least one copy in the regional office of the department, and at least one copy at the main public library, of the area affected. Notwithstanding s. 227.42, the hearing shall be an informational hearing and may not be treated as a contested case hearing nor converted to a contested case hearing.

SB326, s. 3 Section 3. 30.10 (4) (a) of the statutes is amended to read:

SB326,8,17 30.10 (4) (a) This section does not impair the powers granted by law under s. 30.1235 or by other law to municipalities to construct highway bridges, arches, or culverts over streams.

SB326, s. 4 Section 4. 30.102 of the statutes is created to read:

SB326,8,25 30.102 Web site information. (1) Navigability determination and ordinary high-water mark identification. If the department makes a determination that a waterway is navigable or is not navigable or identifies the ordinary high-water mark of a navigable waterway, the department shall publish that information on the department's Internet Web site. Any person may rely on the information posted under this section as accurate. This section does not restrict the ability of a person to challenge the accuracy of the information posted under this section.

SB326,9,5 (2) Application status. To the greatest extent possible, the department shall publish on the department's Internet Web site the current status of any application filed with the department for a permit, license, or other approval under ch. 30. The information shall include notice of any hearing scheduled by the department with regard to the application.

SB326, s. 5 Section 5. 30.106 of the statutes is created to read:

SB326,9,8 30.106 Areas of significant scientific value. In identifying areas that possess significant scientific value, the department may include only the following:

SB326,9,10 (1) Specific portions of waters that contain critical habitat for endangered or threatened species.

SB326,9,13 (2) Specific portions of waters that are immediately adjacent to an area that contains critical habitat for endangered or threatened species and that directly affect that habitat.

SB326,9,15 (3) Wild rice waters as identified in a written agreement between the department and the Great Lakes Indian Fish and Wildlife Commission.

SB326,9,18 (4) Waters in ecologically significant coastal wetlands along Lakes Michigan and Superior as identified in the most recent assessment conducted by the department.

SB326,9,20 (5) Rivers that are included in the national wild and scenic rivers system and rivers that are designated as wild rivers under s. 30.26.

SB326, s. 6 Section 6. 30.11 (4m) of the statutes is created to read:

SB326,9,25 30.11 (4m) Placement of fill and structures. (a) A riparian owner may place additional fill or a structure on the filled portion of a bed of a navigable water within an established bulkhead line for any purpose without obtaining an approval under this chapter if the filled portion of the bed of the navigable water was filled before the effective date of this paragraph .... [LRB inserts date], and the filled portion was not subject to a lease under s. 24.39 before the effective date of this paragraph .... [LRB inserts date].

SB326,10,10 (b) If the bed, or portion of a bed, of a navigable water within an established bulkhead line was not filled before the effective date of this paragraph .... [LRB inserts date], a riparian owner may place fill or a structure on the bed of that navigable water without obtaining an approval under this chapter if the riparian owner places the fill or the structure in a portion of the bed of the navigable water that was not subject to a lease under s. 24.39 before the effective date of this paragraph .... [LRB inserts date], and places the fill or structure for a public purpose.

SB326, s. 7 Section 7. 30.12 (1g) (f) of the statutes is renumbered 30.12 (1g) (f) 1. (intro.) and amended to read:

SB326,10,14 30.12 (1g) (f) 1. (intro.) A pier or wharf that is no to which all of the following apply:

SB326,10,15 a. It is no more than 6 feet wide, that extends.

SB326,10,19 b. It extends no further than to a point where the water is 3 feet at its maximum depth as measured at summer low levels, or to the point where there is adequate depth for mooring a boat or using a boat hoist or boat lift, whichever is farther from the shoreline, and that has.

SB326,10,22 c. It has no more than 2 boat slips for the first 50 feet of the riparian owner's shoreline footage and no more than one additional boat slip for each additional 50 feet of the riparian owner's shoreline footage.

SB326,11,2 2. Notwithstanding the width limitation in this paragraph subd. 1., a pier may have an area as a loading platform that is more than 6 feet wide if the surface area of the platform is not more than 8 feet wide, it extends perpendicular to one or both sides of the pier, and it is located at the lakeward end of the pier or at the end of the pier that extends into a stream does not exceed 200 square feet.

SB326, s. 8 Section 8. 30.12 (1h) of the statutes is created to read:

SB326,11,9 30.12 (1h) Personal watercraft secured to piers allowed. A riparian owner may secure to a pier or wharf up to 2 personal watercraft for the first 50 feet of the riparian owner's shoreline footage and one additional personal watercraft for each additional 50 feet of the riparian owner's shoreline footage without affecting the riparian owner's eligibility for an exemption under sub. (1g) (f). For the purpose of this subsection, "personal watercraft" has the meaning given in s. 30.50 (9d).

SB326, s. 9 Section 9. 30.12 (1j) (c) of the statutes is amended to read:

SB326,11,20 30.12 (1j) (c) If the riparian owner or owners of a property described in par. (a) are eligible and propose to place a pier or wharf with the number of boat slips specified in par. (a), the riparian owner or owners shall apply to the department for an individual permit under s. 30.208 authorizing the configuration of the pier or wharf unless the configuration is authorized by the department under a general permit under s. 30.206 (1g). The department may not deny the permit on the basis of the number of slips proposed by the riparian owner or owners if the number of slips proposed does not exceed the number allowed under par. (a). A riparian owner or owners who apply for a permit under this paragraph shall be presumed to be entitled to the number of slips allowed under par. (a).

SB326, s. 10 Section 10. 30.12 (1k) (b) (intro.) of the statutes is renumbered 30.12 (1k) (b) and amended to read:

SB326,12,2 30.12 (1k) (b) In addition to the exemptions under sub. (1g), a riparian owner of a pier or wharf that was placed on the bed of a navigable water on or before February 6, 2004 the effective date of this paragraph .... [LRB inserts date], is exempt from the permit requirements under this section if all of the following apply: the pier or wharf does not interfere with the riparian rights of other riparian owners.

SB326, s. 11 Section 11. 30.12 (1k) (b) 1. of the statutes is repealed.

SB326, s. 12 Section 12. 30.12 (1k) (b) 2. of the statutes is repealed.

SB326, s. 13 Section 13. 30.12 (1k) (b) 3. of the statutes, as affected by 2011 Wisconsin Act 25, is repealed.

SB326, s. 14 Section 14. 30.12 (1k) (c) of the statutes is repealed.

SB326, s. 15 Section 15. 30.12 (1k) (cm) (intro.) of the statutes is amended to read:

SB326,12,11 30.12 (1k) (cm) (intro.) Except as provided in par. (d), the The department may not take any enforcement action under this chapter against a riparian owner for the placement of any of the following: